Tricia LOCKETT, Plaintiff-Appellant, v. CATALINA CHANNEL EXPRESS, INC., Defendant-Appellee, 496 F.3d 1061

Opinion by Judge CALLAHAN; Dissent by Judge HALL CALLAHAN, Circuit Judge: Catalina Channel Express (“CCE”) operates a ferry between Long Beach and Catalina Island. In response to requests by a frequent passenger for an area free of animal dander, CCE adopted a policy of excluding animals from the Commodore Lounge, a separate and more expensive

section of the ferry. Tricia Lockett is legally blind and uses a service animal, a guide dog, to assist her. On September 2, 2002, Lockett requested a ticket in the Commodore Lounge, but CCE refused to sell her a ticket because it would not allow her to take her guide dog into the area. Two weeks later CCE changed its policy, but two months later Lockett filed this lawsuit alleging that CCE violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. On cross-motions for

summary judgment, the district court granted

summary judgment for CCE. We affirm on the narrow ground that CCE, when suddenly faced with a possible threat to the health and safety of its passengers, made a one-time reasonable judgment under 28 C.F.R. § 36.208 while it investigated the competing interests. I CCE operates a public ferry boat service between Long Beach and Catalina Island. The trip takes an hour each way. In addition to the general passenger seating area, the Commodore Lounge, located on the second deck, serves as a semiprivate sitting area for a small number of passengers who pay an additional ten dollars each way for access.

The Commodore Lounge has leather seats that slightly recline and have tray tables and head rests. Also, Commodore Lounge passengers have the privilege of priority boarding and are served a complimentary drink. In 2000, CCE received a request for a dander-free zone from a frequent passenger who claimed to be allergic to animals. CCE determined that the Commodore Lounge was the only area on the ferry where passengers could be effectively insulated from contact with animals and made dander-free. In early 2001, CCE instituted a policy prohibiting all animals, including service animals, from the Commodore Lounge.

Lockett is legally blind and uses a service animal, a guide dog, to assist her in travel and mobility. On September 2, 2002, she sought to purchase a ticket to travel on the ferry to Catalina Island in the Commodore Lounge. CCE declined to sell Lockett a ticket for the Commodore Lounge because it did not permit any animals, even guide dogs, in the Commodore Lounge. CCE did sell Lockett a general passage ticket and Lockett traveled to Catalina Island and back to Long Beach in the main seating area. CCE changed its animal policy two weeks later to allow service animals in the Commodore Lounge.

CCE estimates that now service animals are brought into the Commodore Lounge once or twice a year. II On November 18, 2002, Locket filed a complaint in the United States District Court for the Central District of California seeking damages and injunctive relief under the ADA, certain California statutes, and common law. Lockett stated that the experience of being denied a ticket to the Commodore Lounge was “embarrassing and frustrating and humiliation [sic].” In the fall of 2004, the parties filed motions for

summary judgment. On August 24, 2005, the district court entered an order denying Lockett’s motion for

summary judgment and granting CCE’s motion for

summary judgment. The district court rejected Lockett’s contention that CCE violated 42 U.S.C. § 12182(b)(l)(A)(ii) in failing to modify its policies to permit service animals into the Commodore Lounge. It held that CCE had provided Lockett with “different and separate accommodations” as allowed by 42 U.S.C. § 12182(b)(l)(A)(iii). As a separate basis for granting CCE

summary judgment, the district court held that CCE’s refusal to admit Lockett’s service animal to the Commodore Lounge was permissible under 28 C.F.R. §§ 36.208, 36.301(a), and 36.302(

c) based on health and safety concerns. Lockett filed a timely appeal. Ill As noted by the district court, pursuant to Federal Rule of Civil Procedure 56(c),

summary judgment is proper only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review the district court’s grant of

summary judgment for CCE de novo. Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126, 1130 (9th Cir.2003). We “must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. at 1131. IV It is undisputed that Lockett is a member of a protected class of disabled persons under 42 U.S.C. § 12102(2).

In light of the purposes of the ADA, CCE’s refusal to sell Lockett a ticket to the Commodore Lounge cannot be justified as a separate arrangement under 42 U.S.C. § 12182(b)(1)(A)(iii). This subsection allows for a separate arrangement or facility when “necessary to provide the individual ... with a good, service, facility, privilege, advantage, or accommodation, ... as effective as that provided to others.” For this subsection to come into play, there must be (1) a separate arrangement or facility, which (2) was necessary for the disabled person, and (8) was “as effective as” that for which it was a substitution.

Here, CCE did not offer Lockett a separate arrangement or facility, but relegated her to the general passenger area. Thus, this subsection is not applicable. Moreover, even if it were applicable, the general passenger area was not equivalent to—not “as effective as”—the Commodore Lounge. The record shows that some travelers were willing to pay a premium for a seat that reclines, early boarding, and being served a cookie and a drink. In other words, the Commodore Lounge is the equivalent of a first class

section on an airplane. Construing the subsection to allow the relegation of an individual with a disability to tourist class, or to the back of the airplane, on the rationalization that the individual was allowed to travel on the same plane would distort the letter and intent of the subsection. Furthermore, even if it could be argued that there was a factual question as to whether the general passenger area was “as effective as” the Commodore Lounge, that question would be a matter for the jury, and could not be determined on

summary judgment. CCE’s relegation of Lockett to the general passenger area was not a permissible accommodation under 42 U.S.C. § 12182(b)(1) (A) (iii). V We recognize, however, that Lock-ett’s request for passage in the Commodore Lounge created a dilemma for CCE. Its prohibition on animals in the Commodore Lounge was adopted in response to a passenger’s assertion of an allergy to animal dander. Accordingly, CCE’s employees had to decide on the spot whether to potentially expose passengers in the Commodore Lounge to dander or to ask Lock-ett to ride in the general passenger area.

We read 29 C.F.R. § 36.208 as permitting CCE to ask Lockett to travel in the general passenger area while it investigated the matter. This regulation provides that an individual can be denied an accommodation when the individual “poses a direct threat to the health or safety of others.” Subsection (

b) notes that direct threat means that the significant risk “cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.” Subsection (

c) states: In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

Applying the regulation to the situation presented in this ease, it appears that CCE was faced with a potential threat to the health and safety of others, and that the threat could not be eliminated by a modification of the policy. Accordingly, CCE had to make a reasonable judgment based on the available medical knowledge and objective evidence. We hold that CCE’s one-time request that Lockett accept passage in the general passenger area was a reasonable judgment under 28 C.F.R. § 36.208.

We hasten to note that this holding is limited to CCE’s single determination made on September 2, 2002, and should not be read as suggesting that CCE’s change in its policy to allow service animals in the Commodore Lounge was not compelled under the ADA. To the contrary, it is clear that ultimately the entity asserting a “direct threat” as a basis for excluding an individual bears a heavy burden of demonstrating that the individual poses a significant risk to the health and safety of others. See Bragdon v. Abbott, 524 U.S. 624, 649-50, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).

Indeed, CCE may well have violated the ADA had it not changed its policy. However, in this case we are asked to determine whether CCE’s failure to immediately accede to Lockett’s request supports a cause of action. Neither party has cited any case directly on point and we have not found such a case. Most of the cases we have reviewed addressed a provider’s ultimate decision concerning the accommodation it is willing to make. For example, in Anderson v.

Little League Baseball, Inc., 794 F.Supp. 342, 345-46 (D.Ariz.1992), the district court issued a temporary restraining order because the defendant adopted a rule prohibiting a person in a wheelchair from being in a coach’s box on the field, and had not conducted an individualized assessment. In Bombrys v. City of Toledo, 849 F.Supp. 1210, 1221 (N-D.Ohio 1993), the district court granted relief against the city’s blanket exclusion of insulin-dependent diabetics from the police force. Also, in Doe v.

District of Columbia, 796 F.Supp. 559, 573 (D.D.C.1992), the district court granted relief because the city had withdrawn its offer of employment based on the plaintiff being HIV-positive. None of these cases concerned a lawsuit brought after the defendant had made the requested accommodation under the ADA, but challenging the defendant’s failure to make an accommodation as soon as it was first requested. Faced with an issue of first impression, we conclude that CCE’s single decision on September 2, 2002, to ask Lockett to ride in the general passenger area was a reasonable judgment under 28 C.F.R. § 36.208.

On that day, the ticket seller was required to make a “reasonable judgment” based on “current medical knowledge” and the “best available objective evidence.” The ticket seller knew only that CCE had adopted a policy based on a passenger’s alleged allergy, and there is no suggestion that the person had any training to evaluate the possible effect on an allergic passenger of the presence of a service animal in the Commodore Lounge. With the ferry scheduled to depart, selling Lockett a ticket for the general passenger area was a reasonable judgment.

It allowed CCE to provide Lockett with transportation to Catalina Island, as she requested, albeit without the benefits and the cost of the Commodore Lounge. We further hold that in this instance, the determination that selling Lockett a ticket to the general passenger area was a reasonable judgment under 28 C.F.R. § 36.208 was properly made on the parties’ cross-motions for

summary judgment. All the evidence as to what the CCE employees knew on September 2, 2002 was before the district court. Lockett does not allege that she was precluded from presenting relevant evidence. Instead, on appeal, she argues that the district court should have granted her

summary judgment on the liability issue. We agree with the district court that the evidence required a finding that CCE’s decision on September 2, 2002 to relegate Lockett to the general passenger area was a reasonable judgment under 28 C.F.R. § 36.208. Accordingly, on this ground only, the district court’s order is AFFIRMED. . Although the district court observed that the parties disagreed on whether the case concerned architectural barriers as defined under the ADA standards, it declined to decide the case on that issue.

We do not address any issue concerning architectural barriers because the parties have not raised any such issue on appeal. . 42 U.S.C. § 12182(b)(l)(A)(ii) reads: (ii) Participation in unequal benefit It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. . 42 U.S.C. § 12182(b)(l)(A)(iii) reads: (iii) Separate benefit It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. . 28 C.F.R. § 36.208 reads: (

a) This part does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others. (

b) Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. (

c) In determining whether an individual poses a direct threat to the 'health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. .

There is no indication that CCE knew, or should have known, whether any passenger in the Commodore Lounge on September 2, 2002, was allergic to animal dander. Moreover, there is no indication that CCE knew, or should have known, the severity of any passenger's alleged allergy to dander. However, it is not difficult to conceive of the potential health ramifications for a passenger with a severe allergy to animal dander who, having been informed that animals are not allowed into the Commodore Lounge, is then confronted with a service dog entering the area.

We cannot say that it was unreasonable for CCE to ask Lockett to ride in the general passenger area with her service animal while it ascertained how severe an allergic reaction to animal dander was medically possible or likely, and informed its riders that service animals would be allowed in the Commodore. Lounge. . 28 C.F.R. 36.302 reads, in relevant part: (

a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. (

c) Service animals—

(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. . The district court cited only an unpublished district court case, Pool v. Riverside Health Servs., Inc., No-941430-PFK, 1995 WL 519129 (D.Kan. Aug.25, 1995). In that case, the district court determined that Ms. Pool, who was confined to a wheelchair, could not state a cause of action under the ADA based on the hospital’s refusal to allow her to take her "assistance dog” into the hospital’s emergency services department where Ms.

Pool's fiancé was being treated. Although this case shows that not all refusals to accommodate are actionable, it is too factually distinct from the case before this court to provide much guidance. . At the time that Lockett filed her complaint, CCE had already changed its policy to allow service animals in. the Commodore Lounge.